EXHIBIT 4.11
COMMON STOCK WARRANT
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR QUALIFIED OR
REGISTERED UNDER STATE SECURITIES OR BLUE SKY LAWS. NEITHER THIS WARRANT NOR
SUCH SECURITIES MAY BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE SECURITIES
ACT OF 1933, APPLICABLE STATE SECURITIES OR BLUE SKY LAWS AND THE APPLICABLE
RULES AND REGULATIONS THEREUNDER.
________________
APOLLON, INC.
Xxx Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000-0000
Name of Registered Holder: A.H. Investments Ltd.
No. 97-1 Date of Issuance: October 3, 1997
Warrant for the Purchase of 150,000 Shares of Common Stock
IN CONSIDERATION OF the financing provided by the initial registered
holder hereof (the "Initial Holder"), consisting of the purchase of a
convertible promissory note in the principal amount of $3,000,000, to
Apollon, Inc., a Pennsylvania corporation (the "Company"), and for value
received, the Company hereby grants the rights herein specified and certifies
that the Initial Holder or any registered assignee of the Initial Holder
(each of the Initial Holder and any such registered assignee being
hereinafter referred to as the "Holder"), is entitled, subject to the
conditions and upon the terms of this Warrant, to purchase from the Company,
at any time or from time to time during the Exercise Period (as defined in
Section 1), the number of shares of Common Stock (as defined in Section 1)
set forth above. The number of shares of Common Stock to be received upon
the exercise of this Warrant and the Exercise Price are subject to adjustment
from time to time as hereinafter set forth.
Section 1. Certain Definitions. Terms defined in the preceding
paragraph and elsewhere in this Warrant have the respective meanings provided
for therein. The following additional terms, as used herein, have the
following respective meanings:
"Act" means the Securities Act of 1933, as amended.
"Common Stock" means the fully paid and nonassessable shares of common
stock of the Company, par value $.01 per share, together with any other
equity securities that may be issued by the Company in addition thereto or in
substitution therefor, as provided herein.
"Exercise Period" means the period beginning on the date six months after
the closing of an Initial Public Offering or in the event no Initial Public
Offering closes prior to twelve months from the date hereof then on such date
and ending on the date five years after the beginning of the Exercise Period.
"Exercise Price" means an amount per share equal to 115% of the price per
share at which shares of Common Stock are offered for sale in an initial
public offering, subject to change or adjustment pursuant to Section 9
hereof. In the event an Initial Public Offering of the Company's Common Stock
does not occur prior to one year from the date hereof, the Exercise Price per
share of Common Stock shall thereafter be equal to 115% of the lesser of (i)
$6.00 or (ii) the price per share paid by purchasers of Common Stock or any
series of the Company's preferred stock in any purchase of Common Stock or
preferred stock closest in time to such date.
"Initial Public Offering: means a public offering for the account of the
Company of shares of Common Stock or securities convertible or exchangeable
for shares of Common Stock in which the gross proceeds to the Company exceed
$10 million.
"Reorganization Event" means (i) any capital reorganization or leveraged
recapitalization of the Company or reclassification of the Common Stock
(other than a subdivision, combination or reclassification of the outstanding
Common Stock for which adjustment is provided in Subsection 9.1 and other
than a change in the par value of the Common Stock or an increase in the
authorized capital stock of the Company not involving the issuance of any
shares thereof), (ii) any consolidation of the Company with, or merger of the
Company with or into, another person (including any individual, partnership,
joint venture, corporation, trust or group thereof) (other than a
consolidation or merger with a subsidiary of the Company in which the Company
is the continuing corporation and in which the Company issues securities
representing, immediately prior to such issuance, no more than 40% of the
combined voting power of the Company's then outstanding voting securities
having power to vote in the election of directors and for which no adjustment
is required by Subsection 9.1) or any sale, lease, transfer or conveyance of
all or substantially all of the property and assets of the Company or (iii)
the announcement or commencement by any "person" or "group" (within the
meaning of Section 13(d) and Section 14(d) of the Exchange Act) of a bona
fide tender offer or exchange offer in accordance with the rules and
regulations of the Exchange Act to purchase, or the acquisition of securities
in the Company, such that after such acquisition or proposed purchase, the
acquiror "beneficially owns" or would "beneficially own" (as defined in Rule
13d-3 under the Exchange Act), securities in the Company representing 40% or
more of the combined voting power of the Company's then outstanding
securities having power to vote in the election of directors.
"Warrant" means this Warrant and any Warrant or Warrants which may be
issued pursuant to Section 4 or 6 hereof in substitution or exchange for or
upon transfer of this Warrant, any Warrant which may be issued pursuant to
Section 2 hereof upon partial exercise of this Warrant and any Warrant which
may be issued pursuant to Section 7 hereof upon the loss, theft, destruction
or mutilation of this Warrant.
"Warrant Register" means the register maintained at the principal office
of the Company, or at the office of its agent, in which the name of the
Holder of this Warrant shall be registered.
"Warrant Shares" means the shares of Common Stock, as adjusted from time
to time, deliverable upon exercise of this Warrant.
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Section 2. Exercise of Warrant. This Warrant may be exercised, in whole
or in part, at any time or from time to time during the Exercise Period, by
presentation and surrender hereof to the Company at its principal office at
the address set forth on the signature page hereof (or at such other address
of the Company or any agent appointed by the Company to act hereunder as the
Company or such agent may hereafter designate in writing to the Holder), with
the purchase form annexed hereto (the "Purchase Form") duly executed and
accompanied by cash or a certified or official bank check drawn to the order
of "Apollon, Inc." (or its successor in interest, if any) (or other
arrangement for a wire transfer of the purchase price in immediately
available funds to an account specified by the Company) in the amount of the
Exercise Price, multiplied by the number of Warrant Shares specified in such
Purchase Form. If this Warrant should be exercised in part only, the Company
or its agent shall, upon surrender of this Warrant, execute and deliver a
Warrant evidencing the right of the Holder thereof to purchase the balance of
the Warrant Shares purchasable hereunder. Upon receipt by the Company during
the Exercise Period of this Warrant and such Purchase Form in proper form for
exercise, together with proper payment of the Exercise Price at its principal
office, or by its agent at its office, the Holder shall be deemed to be the
holder of record of the number of Warrant Shares specified in such Purchase
Form. If the date of such receipt by the Company or its agent is a date on
which the stock transfer books of the Company are closed, such person shall
be deemed to have become the record holder of such Warrant Shares on the next
business day on which the stock transfer books of the Company are open. The
Company shall pay any and all documentary, stamp or similar issue or transfer
taxes payable in respect of the issue or delivery of such Warrant Shares.
Any Warrant issued upon partial exercise of this Warrant pursuant to this
Section 2 shall be dated the date of this Warrant.
Section 3. Reservation of Shares. The Company shall at all times keep
reserved solely for issuance and delivery pursuant to the Warrants the number
of shares of its Common Stock that are or would be issuable from time to time
upon exercise of all Warrants. All such shares shall be duly authorized and,
when issued upon such exercise, shall be validly issued, fully paid and
nonassessable, free and clear of all liens, security interests, charges and
other encumbrances or restrictions on sale and free of all preemptive rights.
Before taking any action that would cause an adjustment pursuant to Section 9
hereof reducing the Exercise Price below the then par value (if any) of the
Warrant Shares issuable upon exercise of this Warrant, the Company will take
any corporate action that may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid and
nonassessable Warrant Shares at the Exercise Price as so adjusted.
Section 4. Transfer in Compliance with Applicable Securities Laws.
4.1 Neither this Warrant nor any of the Warrant Shares, nor
any interest in either, may be sold, assigned, pledged, hypothecated,
encumbered or in any other manner transferred or disposed of, in whole or in
part, except in accordance with Section 6 hereof and in compliance with
applicable United States federal and state securities laws and the terms and
conditions hereof. Except as provided in Subsection 4.2, each Warrant shall
bear the following legend:
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON THE EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR QUALIFIED
OR REGISTERED UNDER STATE SECURITIES OR BLUE SKY LAWS. NEITHER THIS
WARRANT NOR SUCH SECURITIES MAY BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED OR
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DISPOSED OF EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT OF 1933,
APPLICABLE STATE SECURITIES OR BLUE SKY LAWS AND THE APPLICABLE RULES AND
REGULATIONS THEREUNDER.
4.2 If (x) the Warrant Shares have been registered under the
Act and registered or qualified under applicable state securities or Blue Sky
laws or (y) the Holder has received an opinion of inside counsel reasonably
satisfactory to the Company that the Warrant Shares may be freely sold or
transferred without registration under the Act or registration or
qualification under applicable state securities or Blue Sky laws, the Holder
may require the Company to issue, in substitution for a Warrant with the
foregoing legend, a Warrant with the following legend:
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
QUALIFIED OR REGISTERED UNDER STATE SECURITIES OR BLUE SKY LAWS. THIS
WARRANT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE
SECURITIES ACT OF 1933, APPLICABLE STATE SECURITIES OR BLUE SKY LAWS AND
THE APPLICABLE RULES AND REGULATIONS THEREUNDER.
4.3 The Holder may require the Company to issue a Warrant
without either of the foregoing legends in substitution for a Warrant bearing
one of such legends if either (x) this Warrant and the Warrant Shares
issuable upon the exercise hereof have been registered under the Act and
registered or qualified under applicable state securities laws or (y) the
Holder has received an opinion of inside counsel reasonably satisfactory to
the Company that this Warrant may be freely sold or transferred without
registration under the Act or registration or qualification under applicable
state securities laws. The provisions of this Section 4 shall be binding on
all subsequent holders of this Warrant.
Section 5. Warrant Shares Registration Rights. The Holder shall have
such registration rights with respect to the Warrant Shares as are set forth
in Section 6 of the Securities Purchase Agreement dated as of September 19,
1997 between the Company and the Initial Holder, as amended from time to time.
Section 6. Exchange, Transfer or Assignment of Warrant.
6.1 This Warrant may be, at the option of the Holder, and upon
presentation and surrender hereof to the Company at its principal office or
to the Company's agent at its office, (x) exchanged for other Warrants of
different denominations, entitling the Holder or Holders to purchase in the
aggregate the same number of Warrant Shares at the Exercise Price or, (y) if
delivered together with a written notice specifying the denominations in
which new Warrants are to be issued and signed by the Holder, divided or
combined with other Warrants that carry the same rights.
6.2 Subject to Section 4, this Warrant may be transferred and
assigned, at the option of the Holder, upon surrender of this Warrant to the
Company at its principal office or to the Company's agent at its office, with
the Warrant assignment form attached hereto ("Warrant Assignment Form") duly
executed and accompanied by funds sufficient to pay any transfer tax. The
Company shall execute and deliver a new Warrant or
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Warrants in the name of the assignee or assignees named in such Warrant
Assignment Form and, if the Holder's entire interest is not being transferred
or assigned, in the name of the Holder; and this Warrant shall promptly be
cancelled.
6.3 Any transfer or exchange of this Warrant shall be without
charge to the Holder and any Warrant or Warrants issued pursuant to this
Section 6 shall be dated the date hereof.
Section 7. Lost, Mutilated or Missing Warrant. Upon receipt by the
Company or its agent of evidence satisfactory to it of the loss, theft or
destruction of this Warrant, and of satisfactory indemnification, and upon
surrender and cancellation of this Warrant if mutilated, the Company or its
agent shall execute and deliver a Warrant of like tenor and date in exchange
for this Warrant.
Section 8. Rights of the Holder. The Holder shall not, by virtue
hereof, be entitled to any rights of a shareholder in the Company, either at
law or in equity, and the rights of the Holder are limited to those expressed
in this Warrant.
Section 9. Anti-Dilution.
9.1 The Exercise Price shall be adjusted as described below in
the event the Company shall fix or have fixed a record date at any time after
the date hereof and before the expiration of the Exercise Period for a Stock
Distribution, a Below Market Issuance or a Distribution (all as defined
below).
(a) Stock Dividends, Subdivisions, Combinations,
Reclassifications, etc.
(i) A "Stock Distribution" shall be deemed to
have occurred upon (A) the declaration of a dividend or distribution on the
Common Stock payable in shares of capital stock (whether shares of Common
Stock or of capital stock of any other class), (B) the subdivision of shares
of the Common Stock into a greater number of shares, (C) the combination of
the Common Stock into a smaller number of shares or (D) the issuance of any
shares of its capital stock by reclassification of the Common Stock in
connection with a consolidation or merger with a subsidiary of the Company in
which the Company is the continuing corporation and in which the Company
issues securities representing, immediately prior to such issuance, more than
30% of the combined voting power of the Company's then outstanding voting
securities having power to vote in the election of directors.
(ii) Upon the occurrence of a Stock
Distribution, the Holder shall be entitled to receive the aggregate number
and kind of shares which, if the Warrant had been exercised immediately prior
to such record date, it would have been entitled to receive by virtue of such
dividend, distribution, subdivision, combination or reclassification, and the
Exercise Price shall be appropriately adjusted. Such adjustment shall be
made successively whenever any event listed in subparagraph (i) shall occur.
(b) Issuance at Less Than Fair Market Value.
(i) A "Below Market Issuance" shall be deemed to
have occurred upon the Company's issuance of rights, convertible securities,
options or warrants to all holders of Common Stock entitling them to
subscribe for or purchase Common Stock at a price per share or having a
conversion or exercise price per share
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(including the amount paid, if any, for such rights, options or warrants)
less than the Exercise Price on such record date (excluding rights or
warrants that are not immediately exercisable and for which provision is made
for the Holder to receive comparable rights or warrants).
(ii) Upon the occurrence of a Below Market
Issuance, the number of Warrant Shares to be received hereunder after such
record date shall be determined by multiplying the number of shares
receivable hereunder immediately prior to such record date by a fraction, the
denominator of which shall be the number of shares of Common Stock
outstanding on such record date plus the number of shares of Common Stock
that the aggregate offering price of the total number of shares so offered
for subscription or purchase would purchase at the Exercise Price on such
record date, and the numerator of which shall be the number of shares of
Common Stock outstanding on such record date plus the number of additional
shares of Common Stock offered for subscription or purchase, and the Exercise
Price shall be appropriately adjusted so that the new Exercise Price
multiplied by the new number of Warrant Shares shall equal the Exercise Price
multiplied by the Warrant Shares immediately preceding such adjustment.
(iii) Shares of Common Stock owned by or held
for the account of the Company or any subsidiary of the Company on such
record date shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall become effective immediately after such
record date. Such adjustment shall be made successively whenever any such
Below Market Issuance shall occur. If such rights, options or warrants are
not so issued, the number of Warrant Shares receivable hereunder shall again
be adjusted to be the number that would have been in effect had such record
date not been fixed.
(iv) On the expiration of such rights, options
or warrants, the number of Warrant Shares receivable hereunder shall be
readjusted to be the number that would have been obtained had the adjustment
made upon the issuance of such rights, options or warrants been made upon the
basis of the issuance of only the number of shares of Common Stock actually
issued upon the exercise of such rights, options or warrants, provided,
however, that if the Holder of this Warrant shall have exercised this Warrant
prior to any such readjustment, the number of Warrant Shares that have been
delivered or the number of Warrant Shares to be delivered shall not be
subject to any readjustment.
(v) In any case in which this Subsection 9.1(b)
shall require that an adjustment in the number of shares receivable hereunder
or the Exercise Price be made effective as of a record date for a specified
event, the Company may elect to defer until the occurrence of such event
issuing to the Holder of any Warrant exercised after such record date the
number of Warrant Shares, if any, issuable upon such exercise over and above
the number of Warrant Shares, if any, issuable upon such exercise on the
basis of the Exercise Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such Holder a due xxxx or other
appropriate instrument evidencing such Holder's right to receive such
additional Warrant Shares upon the occurrence of the event requiring such
adjustments.
(c) Distribution of Subscription Rights, Warrants,
Evidences of Indebtedness or Assets.
(i) The Company shall be deemed to have made a
"Distribution" upon the making of a distribution to all holders of Common
Stock (or other
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securities deliverable hereunder) (including any such distribution to be made
in connection with a consolidation or merger in which the Company is to be
the continuing corporation) of (A) any shares of capital stock of the Company
(other than Common Stock), (B) subscription rights or warrants (excluding
those for which adjustment is provided in Subsection 9.1(b) above and
excluding those that are not immediately exercisable and for which provision
is made for the Holder to receive comparable subscription rights or warrants)
or (C) evidences of its indebtedness or assets (excluding (x) dividends paid
in or distributions of the Company's capital stock for which the number of
Warrant Shares receivable hereunder shall have been adjusted pursuant to
Subsection 9.1(a) and (y) cash dividends or distributions payable out of
earnings or surplus not in excess of 10% of the Exercise Price before the
date of declaration multiplied by the number of outstanding shares of Common
Stock) (any of the foregoing being hereinafter in this paragraph (iii) called
the "Securities").
(ii) Upon the making of any such Distribution
(unless the Company elects to reserve shares or other units of such
Securities for distribution to each Holder upon exercise of the Warrant so
that, in addition to the shares of the Common Stock to which each Holder is
entitled, each Holder will receive upon such exercise the amount and kind of
such Securities which such Holder would have received if the Holder had,
immediately prior to the record date for the distribution of the Securities,
exercised the Warrant), the number of Warrant Shares receivable hereunder
after such record date shall be determined by multiplying the number of
Warrant Shares receivable hereunder immediately prior to such record date by
a fraction, the denominator of which shall be the Exercise Price on the day
immediately prior to the date on which the right to receive such Securities
accrues, less the fair market value (as determined in the reasonable judgment
of the Board of Directors of the Company and described in a statement mailed
by certified mail to the Holder) of the portion of the assets or evidences of
Indebtedness so to be distributed to a holder of one share of the Common
Stock or of such subscription rights or warrants applicable to one share of
the Common Stock, and the numerator of which shall be the Exercise Price on
such date; and the Exercise Price shall be appropriately adjusted so that the
new Exercise Price multiplied by the new number of Warrant Shares shall equal
the Exercise Price multiplied by the Warrant Shares immediately preceding
such adjustment.
(iii) Such adjustment shall become effective
immediately after such record date and shall be made successively whenever
such a record date is fixed. If such distribution is not so made, the number
of Warrant Shares receivable hereunder shall be readjusted to be the number
that was in effect immediately prior to such record date.
(iv) In the event that the Holder of this
Warrant exercises this Warrant after an adjustment is made under this
Subsection 9.1(c) and prior to a readjustment under this Subsection 9.1(c),
the number of Warrant Shares that have been delivered or the number of
Warrant Shares to be delivered shall not be subject to any readjustment. In
any case in which this Subsection 9.1(c) shall require that an adjustment in
the number of Warrant Shares receivable hereunder or the Exercise Price be
made effective as of a record date for a specified event, the Company may
elect to defer until the occurrence of such event issuing to the Holder of
any Warrant exercised after such record date the number of Warrant Shares, if
any, issuable upon such exercise over and above the number of Warrant Shares,
if any, issuable upon such exercise on the basis of the Exercise Price in
effect prior to such adjustment; provided, however, that the Company shall
deliver to such Holder a due xxxx or other appropriate instrument evidencing
such Holder's right to receive such additional Warrant Shares upon the
occurrence of the event requiring such adjustments.
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9.2 Reorganization Event. In case of any Reorganization Event
the Company shall, as a condition precedent to the consummation of the
transaction constituting, or announced as, such Reorganization Event, cause
effective provisions to be made so that the Holder shall have the right
immediately thereafter, by exercising this Warrant, to receive the aggregate
amount and kind of shares of stock and other securities and property that
were receivable upon such Reorganization Event by a holder of the number of
shares of Common Stock that would have been received immediately prior to
such Reorganization Event upon exercise of this Warrant. Any such provision
shall include provision for adjustments in respect of such shares of stock
and other securities and property that shall be as nearly equivalent as may
be practicable to the adjustments provided for in Subsection 9.1. The
foregoing provisions of this Subsection 9.2 shall similarly apply to
successive Reorganization Events.
9.3 Fractional Shares. No fractional shares of Common Stock
(or other securities deliverable hereunder) or scrip shall be issued to any
Holder in connection with the exercise of this Warrant. Instead of any
fractional share of Common Stock (or other securities deliverable hereunder)
that would otherwise be issuable to such Holder, the Company shall pay to
such Holder a cash adjustment in respect of such fractional interest in an
amount equal to such fractional interest multiplied by the Exercise Price per
share of Common Stock (or other securities deliverable hereunder) on the date
of such exercise.
9.4 Carryover. Notwithstanding any other provision of this
Section 9, no adjustment shall be made to the number of shares of Common
Stock (or other securities deliverable hereunder) to be delivered to each
Holder (or to the Exercise Price) if such adjustment would represent less
than one percent of the number of shares to be so delivered, but any such
adjustment shall be carried forward and shall be made at the time and
together with the next subsequent adjustment which, together with any
adjustments so carried forward, shall amount to one percent or more of the
number of shares to be so delivered.
9.5 Notices of Certain Events. If at any time after the date
hereof and before the expiration of the Exercise Period:
(a) the Company authorizes the issuance to all holders of
its Common Stock of (i) rights or warrants to subscribe for or purchase
shares of its Common Stock or (ii) any other subscription rights or warrants;
or
(b) the Company authorizes the distribution to all holders
of its Common Stock of evidences of its indebtedness or assets (other than
cash dividends or distributions excluded from the operation of Subsection
9.1(c)); or
(c) there shall be any capital reorganization of the
Company or reclassification of the Common Stock (other than a change in par
value of the Common Stock or an increase in the authorized capital stock of
the Company not involving the issuance of any shares thereof) or any
consolidation or merger to which the Company is a party (other than a
consolidation or merger with a subsidiary in which the Company is the
continuing corporation and that does not result in any reclassification or
change in the Common Stock outstanding) or a conveyance or transfer of all or
substantially all of the properties and assets of the Company;
(d) there shall be any voluntary or involuntary
dissolution, liquidation or winding-up of the Company; or
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(e) there shall be any other event that would result in an
adjustment pursuant to this Section 9 in the Exercise Price or the number of
Warrant Shares that may be purchased upon the exercise hereof;
the Company will cause to be mailed to the Holder, at least fifteen days (or
ten days in any case specified in clauses (a) or (b) above) before the
applicable record or effective date hereinafter specified, a notice stating
(i) the date as of which the holders of Common Stock of record entitled to
receive any such rights, warrants or distributions is to be determined, or
(ii) the date on which any such reorganization, reclassification,
consolidation, merger, conveyance, transfer, dissolution, liquidation or
winding-up is expected to become effective, and the date as of which it is
expected that holders of Common Stock of record will be entitled to exchange
their shares of Common Stock for securities or other property, if any,
deliverable upon such reorganization, reclassification, consolidation,
merger, conveyance, transfer, dissolution, liquidation or winding-up.
9.6 Failure to Give Notice. The failure to give the notice
required by Subsection 9.5 or any defect therein shall not affect the
legality or validity of any distribution right, warrant, consolidation,
merger, conveyance, transfer, dissolution, liquidation or winding-up or the
vote upon any such action.
Section 10. Net Issue Election. The Holder may elect to receive,
without the payment by the Holder of any additional consideration, shares
equal to the value of this Warrant or any portion hereof by the surrender of
this Warrant or such portion to the Company, with the net issue election
notice annexed hereto duly executed, at the office of the Company; provided,
that the Holder may not make such an election unless (i) the Company has
registered the Common Stock pursuant to the Act or in connection with such
registration or (ii) upon the expiration of this Warrant. Thereupon, the
Company shall issue to the Holder such number of fully paid and nonassessable
shares of Common Stock as is computed using the following formula:
X = Y (A-B)
-------
A
where X = the number of shares to be issued to the Holder pursuant to this
Section 10.
Y = the number of shares covered by this Warrant in respect of which the
net issue election is made pursuant to this Section 10.
A = the fair market value of one share of Common Stock. If the Common
Stock is registered pursuant to the Act, the fair market value shall
mean the average high and low prices of the Common Stock on the day
prior to the exercise of this Warrant, if the Common Stock is being
traded on a national exchange; or the last reported sale price on the
day prior to exercise of this Warrant, if the Common Stock is traded
on the Nasdaq National Market, and the Common Stock is not traded on a
national exchange; or the closing bid price (or average of bid prices)
last quoted on the day prior to the exercise of this Warrant by an
established quotation service for over-the-counter securities, if the
Common Stock is not reported on the Nasdaq National Market or a
national exchange. If the election occurs in connection with the
registration of Common Stock under the Act, then the fair market value
shall be the price offered to the public. Otherwise, the fair market
value shall be as determined in good faith by the Board of Directors
of the Company, at the time the net issue election is made pursuant to
this Section 10.
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B = the Exercise Price in effect under this Warrant at the time the net
issue election is made pursuant to this Section 10. The Board of
Directors shall promptly respond in writing to an inquiry by the
Holder as to the fair market value of one share of Common Stock.
Section 11. Officers' Certificate. Whenever the number of Warrant
Shares that may be purchased on exercise of this Warrant or the Exercise
Price is adjusted as required by the provisions of Section 9, the Company
will forthwith file in the custody of its Secretary or an Assistant Secretary
at its principal office and at the office of its agent an officers'
certificate showing the adjusted number of Warrant Shares that may be
purchased at the Exercise Price on exercise of this Warrant and the adjusted
Exercise Price determined as herein provided, setting forth in reasonable
detail the facts requiring such adjustment and the manner of computing such
adjustment. Each such officers' certificate shall be signed by the
President, Chief Financial Officer or Treasurer of the Company and by the
Secretary or an Assistant Secretary of the Company. Each such officers'
certificate shall be made available at all reasonable times for inspection by
the Holder. The Company shall, forthwith after each such adjustment, cause a
copy of such certificate to be mailed to the Holder.
Section 12. Warrant Register. The Company will register this Warrant in
the Warrant Register in the name of the record holder to whom it has been
distributed or assigned in accordance with the terms hereof. The Company may
deem and treat the registered Holder of this Warrant as the absolute owner
hereof (notwithstanding any notation of ownership or other writing hereon
made by anyone) for the purpose of any exercise hereof or any distribution to
the Holder and for all other purposes, and the Company shall not be affected
by any notice to the contrary.
Section 13. Successors. All of the provisions of this Warrant by or for
the benefit of the Company or the Holder shall bind and inure to the benefit
of their respective successors and assigns.
Section 14. Headings. The headings of sections of this Warrant have
been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
Section 15. Amendments. This Warrant may be amended by the affirmative
vote of Holders holding Warrants to purchase not less than two-thirds of the
Warrant Shares purchasable pursuant to all of the then outstanding Warrants;
provided, that, except as expressly provided herein, this Warrant may not be
amended, without the consent of the Holder, to change (a) any price at which
this Warrant may be exercised, (b) the period during which this Warrant may
be exercised, (c) the number or type of securities to be issued upon the
exercise hereof or (d) the provisions of this Section 15.
Section 16. Notices. Unless otherwise provided in this Warrant, any
notice or other communication required or permitted to be made or given to
any party hereto pursuant to this Warrant shall be in writing and shall be
deemed made or given if delivered by hand, on the date of such delivery to
such party or, if mailed, on the fifth day after the date of mailing, if sent
to such party by certified or registered mail, postage prepaid, addressed to
it (in the case of a Holder) at its address in the Warrant Register or (in
the case of the Company) at its address set forth below, or to such other
address as is designated by written notice, similarly given to each other
party hereto.
Section 17. Governing Law. This Warrant shall be deemed to be a
contract made under the laws of the Commonwealth of Pennsylvania and for all
purposes shall be
10
construed in accordance with the laws of said Commonwealth as applied to
contracts made and to be performed in Pennsylvania between Pennsylvania
residents.
IN WITNESS WHEREOF, the Company has duly caused this Warrant to be signed
and attested by its duly authorized officer and to be dated as of the date
first above written.
APOLLON, INC.
By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: President and CEO
Address: Xxx Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
11
PURCHASE FORM
The undersigned, ______________, hereby irrevocably elects to exercise
the within Warrant to purchase _____ shares of Common Stock and hereby makes
payment of $_________ in payment of the exercise price thereof.
Date:
-------------, ---- --------------------------------
[Signed]
---------------------------------
[Street Address]
---------------------------------
[City and State]
NET ISSUE ELECTION NOTICE
The undersigned, _________________________, hereby irrevocably
elects under Section 10 to surrender the right to purchase ________ shares of
Common Stock pursuant to this Warrant. The certificate(s) for the shares
issuable upon such net issue election shall be issued in the name of the
undersigned or as otherwise indicated below.
Date:
----------------, ---- ------------------------------
Signature
-------------------------------
Name of Registration
-------------------------------
[Street Address]
-------------------------------
[City and State]
WARRANT ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned, __________________ ("Assignor"),
hereby sells, assigns and transfers unto
Name: ("Assignee")
----------------------------------------
(Please type or print in block letters.)
Address:
-------------------------------------
-------------------------------------
Social Security or Taxpayer I.D. No.:
------------------
Assignor's right to purchase up to ____ shares of Common Stock represented by
this Warrant and does hereby irrevocably constitute and appoint the Company
and any of its officers, secretary, or assistant secretaries, as
attorneys-in-fact to transfer the same on the books of the Company, with full
power of substitution in the premises.
Date:
------------, ---- -----------------------------------------
[Signed]
